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Dhajadhari Chatterjee Vs. Nitya Nanda Roy and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 438 of 1951
Judge
Reported inAIR1953Cal102
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Sections 12(3) and 18(1); ;West Bengal Premises Rent Control (Temporary Provisions) (Amendment) Act, 1950 - Sections 5 and 6
AppellantDhajadhari Chatterjee
RespondentNitya Nanda Roy and anr.
Appellant AdvocatePramatha Kumar Chakravarty, Adv.
Respondent AdvocateNilkantha Chatterjee, Adv.
Excerpt:
- .....1950, as subsequently amended for rescinding a decree for possession.2. the original order was passed on march 25, 1950, by consent in a proceeding in which the only defualt alleged under the act of 1948 was one under section 12(3) of the act, usually referred to as an ipso-facto defualt. on may, 20, after act xvii of 1950 came into force, the tenant made an application under section 18(1) of that act for relief. that was granted, although objection was taken by the landlord that the decree was a consent decree. on revision by this court, it was pointed out that the case was clearly one of ipso-facto default, and, in view of the interpretation put on section 18(1) at that time, it had no application to such cases. therefore, in revision this court set aside the order of the. learned.....
Judgment:
ORDER

Roxburgh, J.

1. This is a Rule against an order of a Judge of the Small Cause Court Calcutta, refusing an application purporting to be one under Section 18(1) of the West Bengal Premises Rent Control Act, 1950, as subsequently amended for rescinding a decree for possession.

2. The Original Order was passed on March 25, 1950, by consent in a proceeding in which the only defualt alleged under the Act of 1948 was one under Section 12(3) of the Act, usually referred to as an ipso-facto defualt. On May, 20, after Act XVII of 1950 came into force, the tenant made an application under Section 18(1) of that Act for relief. That was granted, although objection was taken by the landlord that the decree was a consent decree. On revision by this court, it was pointed out that the case was clearly one of ipso-facto default, and, in view of the interpretation put on Section 18(1) at that time, it had no application to such cases. Therefore, in revision this court set aside the order of the. learned Judge which had rescinded the original order of March 25, 1950. By the order of this Court the date of delivery of possession was extended till November 1.

3. After the amending Act LXII of 1950 came into force, the tenant filed an application labelled as one under Section 18(1) of the Act and it is the order rejecting this application which is the subject matter of the present Rule. The application has been rejected on the ground that the original order was made on consent.

4. Strictly speaking, the tenant could not make any application under Section 18(1) as such. Section 18(1) even as amended requires that application be made within 60 days of the coming into (force of Act XVII of 1950, that is to say, of March 31, 1950. The only section under which the tenant could conceivably apply is Section 6 of Act LXII of 1950. Unfortunately although one may presume that it was intended by this Section to give relief in a case such as the present, it fails to do. It runs as follows:

'Where at any time between the commencement of the said Act (XVII of 1950) and of this Act an order or decree for recovery of possession of any premises has been made..............'

an application may be made within 60 days of the commencement of Act LXII of 1950 and the order or decree may be rescinded. Section 6 cannot apply to the present case because the order in question for recovery of possession was made on March 25, 1950, not in the interval specified in Section 6.

5. Section 5 of Act LXII of 1950 gives relief in cases where an application under Section 18(1) had been made under Act XVII of 1950 and was still pending when the amending Act came into force. It also gives relief in cases where no actual order for possession had been passed by March 31, 1950, and which were still pending when Act LXII of 1950 came into force.

6. The present type of cases however has been omitted. It has been urged before me that the result of the order of this Court in revision setting aside the order of the trial Judge originally passed under Section 18(13 had the effect of making the original order of possession of March 25, 1950, the order of this Court passed at the later date. I am unable to accept the contention.

7. If the learned trial Judge had taken, what must be deemed to be the correct view, the view taken by this Court in revision, and had refused the application under Section 18(1) it could hardly have been suggested that as a result of that refusal to rescind or interfere with the order of March 25, 1950, it had in any way become an order of the later date. I do not think the position is in any way altered where the trial Judge erroneously has interfered with the previous order & his order of interference has in turn been upset in revision by this court.

8. The result is that, although I do not agreewith the reason given by the learned Judge forthe order passed in this case, the order in itselfis correct. The Rule is accordingly discharged. Imake no order as to costs.


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